High Court Division
(Civil Appellate Jurisdiction)
Md. Mozammel Hoque J
Md. Abdur Rashid J
Bangladesh Water Development Board………..Appellant
Contractor, Manu Barrage……….Respondent
October 30, 2000.
Rafique Rahman with Tufailur Rahman and Sufia Ahammed, Advocates—For the Appellant.
Md. Moksudur Rahman with Fazlul Haque, Advocates—For the Respondent.
First Appeal No. 180 of 2000.
Md. Abdur Rashid J.- This appeal presented by the defendants against the judgment and decree dated 21-11-1999 passed by the Subordinate Judge, 3rd Court, Dhaka in Money Suit No.12 of 1992 decreeing the suit.
2. The plaintiff instituted the suit for a decree for a sum of Taka 10,85,53,174,99. The plaint Case, in short, is that the plaintiff is a reputed and experienced contractor. He got the contract for construction of a barrage over river Manu known as Manu Barrage in the District of Moulvi Bazar. The contract was executed on 8-7-1977 and work order was issued thereon. Due to erosion of the river, the site of the barrage was being changed and it remained undecided till 28-9-1977. The work ultimately commenced on 30-12-1977 and completed on 13-6-1981 to the full satisfaction of the defendants. On 5-12-1982 the plaintiff submitted his final bill being No.50 which stood at Taka 16,03,278.00 on account of outstanding dues out of bill Nos. 46-49. The amount having not been paid, on 3-7-1983 the plaintiff made a representation to the Chairman of the Water Development Board. He claimed Taka 32,25,535.00 on account of the difference in the measurement use of U-type sheet piling in place of I-type piling and Taka 69,70,000.00 for excess dewatering. Originally, 90,678 square feet with the depth of 28 feet was to be pumped out. But for change of the original design 1,51,001 square feet with depth of 37 feet water was dewatered. He also claimed Taka 15,24,221.30, for the difference he had to incur loss for purchase of MS Rod at the rate of Taka 8,124.00 per ton in place of estimated price of Taka 6,760.00 and also Taka 21,98,176.50for the difference of the price for cement he had to pay at the rate of 1,502.00 per ton in place of estimated price of 1,060.00. He further claimed Taka 2,00,61, for 75.69% of increase of the work.
3. Having received no response from the representation made to the Chairman, the plaintiff was constrained to serve a notice upon the defendant on 16-8-1984 under chapter 66 of the contract for appointment of an arbitrator for arbitration of the dispute. He also appointed Mr. SM Shahidullah, an engineer, as an arbitrator from his side. The defendant also appointed an arbitrator. Before the arbitrators, plaintiff placed his claim of Taka 4,16,73,558.85 under different heads plus interest on the said amount at 2,22,00,422.59 in total 6,38,73,980.39.
4. Both the arbitrators on consideration of the claim and counter claim and the materials produced before them in total consensus gave an award of Taka 38,33,973.00 only in favour of the plaintiff. The plaintiff then filed an objection under section 33 with section 30 of the Arbitration Act against the award before the 3rd Court of Subordinate Judge, Dhaka being Arbitration Miscellaneous Case No.907 of 1986. The defendants also made similar application for setting aside the award being Arbitration Miscellaneous Case No.42 of 1987. On hearing both the parties the learned Subordinate Judge allowed both the Miscellaneous Cases and set aside the award by his order dated 17-11-1991.
5. Thereafter, the plaintiff instituted the instant suit for a decree for the above claim of Taka plus interest at the rate of 15.50% on the decreed amount.
6. The defendant Bangladesh Water Development Board (BWDB) contested the suit by filing a written statement denying the Case of the plaintiff. The defence Case, in brief, is that the suit as framed is not maintainable, there is no cause of action for the suit, the suit is barred by limitation and also bad for being hit by the principle of estoppel, waiver and acquiescence. The suit was motivated and based on greed of the plaintiff. It is also stated in the written statement that the plaintiff could not furnish the performance bond within 15 days as per contract. Rather, the plaintiff submitted the performance bond on 30-12-1977. The course of the river having changed the layout design had to be changed. The work commenced on 6-10-1977 after the submission of the design for the foundation by the plaintiff. The original design suffered some change from the contract design. The plaintiff having failed to procure tools and machinery in time the work could not be completed by 30-9-1979 as was agreed upon. The defendant gave the plaintiff all out co-operation in all respects. The defendant however admitted that the security deposit of Taka 60,93,273.00 and outstanding dues of Taka 16,03,278.00 out of the final 50th bill were not paid to the plaintiff. The contract price was enhanced from 7.76 crore to 12.18 crore out of which the plaintiff received payment of Taka 12.02 crore (7.93 crore for tender items and 4.09 crore for non-tender items).
7. Meanwhile, complaint came before the Board that in collusion with the employees of the defendant the plaintiff received over-payment. As per terms of the contract, the said complaint was inquired by a team headed by Mr. Nurul Huda, Chief Engineer. The plaintiff also attended the said inquiry. The Huda Committee submitted a report that the plaintiff submitted additional bills for Taka 1.93 crore for non-tender items and in fact, received Taka 1.33 crore in excess. That report was reviewed by Mr. Wahid, Chief Engineer. He found that the plaintiff submitted additional bills for Taka 1.58 crore and actually received Taka 1.48 crore in excess. For the reason the defendant withheld the payment against the 50th bill and also did not return the security deposit. When the plaintiff was asked for return of the excess money the plaintiff on 16-8- 1984 gave the notice for appointment of an Arbitrator for arbitration of the created dispute.
8. It is also stated that as terms of the contract the real measurement was done not only in square feet but also in feet. During the course of work entire payment for the work of the sheet piling was received by the plaintiff and he had no outstanding dues on that account. In 1979 Shah Ali Hossain committee on elaborate discussions with the plaintiff gave him the decision in September, 1979 that the claim on account of sheet piling could not be accepted. Thereafter, the plaintiff did not raise any further claim on that account. On account of dewatering the plaintiff on 5-7-1979 placed a claim of Taka 48,42,130.00 and the matter was referred to the Shah Ali Hossain committee. After thorough considerations the committee by its decision dated 28-9-1979 approved an additional payment of Taka 6,00,000.00 for the increased work on this count. The plaintiff received the said Taka 6,00,000.00 against 29th and 46th bills after full satisfaction of the claim by putting his signature thereon. So, the plaintiff received 6,00,000 plus earlier 30,00,000.00 and accordingly, he could not have any claim on this count also.
9. With regard to the claim on the difference of the price of MS Rod, it is stated that under the terms of the contract, the plaintiff was required to procure all sorts of raw materials including MS Rod. In the interest of work the defendant made prayer to the government for supply of MS Rod and Government approved their prayer and accordingly, the price at the rate of Taka 8,124.00 was deducted from the bills of the plaintiff and as it was done on the order of the Government the plaintiff, therefore, cannot have any claim on this account. Similarly, it is the plaintiff who was required under the contract for the supply of the cement. When the work was kept withheld for want of cement and plaintiff approached the defendant for supply of the cement, the defendant brought the matter to the notice of the Government in the interest of the work. The Government was agreed to supply the cement but on the condition that the plaintiff had to pay at the rate of market price of Taka 1,502.00 per ton. Accordingly, Taka 21,98,178.50 was deducted from the bill of the plaintiff and the plaintiff, therefore, cannot have any valid claim on this account either.
10. On the increase of the work, it was stated by the defendant that as per terms of the contract as there was no increase of work by 15%, there cannot be question for adjustment. The institution of the suit, accordingly, by the defendant is nothing but a counter-blast to the pressure they created upon the plaintiff for refund of the excess money of Taka 1.48 crore as received in collusion with the employees of the defendant. The arbitrators wrongly gave an award for Taka 38,33,973.00. In fact, the plaintiff had no valid claim from the defendant. The defendant filed Miscellaneous Case No. 42 of 1987 for setting aside the disputed award which was ultimately set aside.
11. On the aforesaid pleadings, issues framed were whether the suit as framed is maintainable, whether the suit is barred by limitation and whether plaintiff is entitled to any decree or not.
12. In support of the case the plaintiff examined himself as PW1 and his another employee as PW 2 while the defendant examined only one witness namely, Md. Rafiqul Islam as DW1. The plaintiff adduced documents which are marked as Exhibit 1-23, while the defendant adduced documents which are marked as Exhibits A-C.
13. Dr. Rafiqur Rahman, the learned Senior Counsel appearing for the Appellant, submitted at the outset, on the maintainability of the suit. Drawing our attention to the order passed by the Subordinate Judge on 17-11-1991 setting aside the award on allowing the objections of both the plaintiff as well as the defendant he submitted that the learned Subordinate Judge in setting aside the award did not pass any direction superseding the reference or, ordered that the arbitration agreement had ceased to have effect with respect to the difference referred. According to him, the arbitration agreement was therefore alive and, as such, without further pursuing arbitration, the suit instituted by the plaintiff is not maintainable. So, he submitted that the appeal should be allowed on this ground alone and the party should be directed to pursue the arbitration which they agreed in the contract. Then, he submitted on merit of the appeal that the trial Court decreed the suit in its entirety without any evidence to support the claims of the plaintiff. He also challenged the decree passed on the interest calculated by the plaintiff inasmuch as the plaintiff does not have any such right to add interest on the amount claimed in the suit till decision by a court of law. He also submitted that suit was barred by limitation.
14. Mr Moksudur Rahman, the learned Senior Counsel appearing for the respondent, submitted that the order of the Subordinate Judge was not based under section 19. As the objection was filed under section 33 read with section 30 the order must be understood to have been passed under section 33 of the Arbitration Act. Accordingly, he opposed the submission of Dr Rahman that the failure to pursue arbitration would make the suit not maintainable. On merit he submitted that the trial Court on consideration of the facts and circumstances of the case and on the evidence on record passed the decree and, as such, the decree does not call for any interference by this Division. On limitation he drew our attention to section 37 of the Arbitration Act and submitted that the time consumed in Arbitration proceeding is to be excluded under section 37(5) of Arbitration Act and if that is done, the suit would be well within time.
15. With regard to the claim of interest he submitted that it was for this Division to decide on the claim of interest if any amount was found to be due.
16. The plaintiff examined himself as PW 1 in support of the plaint case. He stated that out of bill Nos. 46-49 an amount of Taka 16,03,378.00 was due against which bill No.50 was submitted. Because of the change in measurement of sheet piling from 1-type to U type he suffered loss of Taka 32,25,535.00 which is also due to him. The area and the depth for dewatering having increased from 90,678 square feet with depth of 28 feet to 1,51,001 square feet with depth of 37 feet depth and accordingly, he claimed on account of dewatering Taka 69,70,000.00. On account of price of MS Rod at Taka 8,124.00 per ton in place of estimated rate of Taka 6,760.00 per ton MS Rod and Taka 15,24,221.30 having been deducted from his bills which the department is liable to return to him. On account of cement, Taka 21,98,176.50 was deducted from his bills at the rate of Taka 1,502.00 per ton cement in place of estimated price of Taka 1,060.00 per ton. According to the terms of the contract, if the work increase or decrease at the rate of 15% the entire work was to be revalued adjusted. After the completion of the work, he found there was an increase of volume of work of 57-69% and accordingly, he made a claim for Taka 2,00,61,375.00 on account of the increase, Besides, he testified that security money of Taka 60,90,976.00 was still lying with the defendant and was not paid to him in spite of repeated demands. He accordingly, made demands for payment of the outstanding dues on 3-7-1983 to the Chairman of the Water Development Board. Having received no response he had to appoint an arbitrator giving notice to the defendant for appointment of their arbitrator for arbitration of the difference which arose over his outstanding dues. But the arbitrators without going through the papers gave an award of Taka 38,33,973.00 which could not be accepted. Accordingly, he made an application under section 33 of the Arbitration Act for setting aside the award. He also denied to have received Taka 1.58 crore in excess of his dues. In cross-examination he denied that the Shah Alam Committee approved the additional payment for Taka 6,00,000.00. He could not remember whether he received Taka 6,00,000.00 out of the bill Nos.29 and 46. He also denied to have received the entire price of the work on account of the sheet piling. He also denied that having failed to procure cement and MS Rod he made request for supply of MS Rod and Cement on which at the intervention of the defendant the Government approved supply of MS Rod and Cement at the market price and the price of the cement and MS Rod was accordingly deducted from the bills. However, he admitted to have received an amount of Taka 12 crore as per record for the work. He also admitted to have received the letter dated 2- 6-1983 issued by the Nurul Huda Committee asking him to appear on 5-7-1983 but he did not appear before the committee. He then admitted that he made a representation before the Chairman of Water Development Board on 3-7-1983. He also admitted that sheet piling both in flat and U-type were agreed as per tender and accordingly he submitted tender. He then claimed on account of work of sheet piling before the Shah Ali Hossain Committee but he could not say his claim was rejected by the committee. He also denied to have received Taka 6,00,000.00 in addition to Taka 30,00,000.00 on account of work for dewatering. He denied that the claim he placed for Taka 2 crore on account of increase of the work had no basis.
17. PW 2 Md. Shamsur Rahman examined by the plaintiff was a Senior Engineer in the firm of the plaintiff and was in-charge of supervision of site plan and management of the work in question. He also corroborated the plaintiff and testified that the original price of the work was fixed at Taka 7,67,01,000.00 but due to the change of design of the project the price of the work increased to Taka 12 crore. The plaintiff suffered loss by purchase of rod, cement at a higher price. Giving a breakdown of the claims he corroborated the claims of the plaintiff to the effect.
Normal 0 false false false EN-US X-NONE X-NONE MicrosoftInternetExplorer4
|1) 46-50th||Taka 16,03,278.00|
|2) Sheet piling||Taka 32,35,353.00|
|3) De-watering||Taka 69,70,000.00|
|4) MS Rod||Taka 15,24,221.30|
|5) Cement||Taka 21,98,176.50|
|6) For 15% increase of work||Taka 2,00,61,375.00|
|7) Security deposit||Taka 60,93,997.00|
18. In cross-examination, he also admitted more or less the plaintiff received Taka 12.00 crore. He also admitted to have received the letter of Nurul Huda Committee dated 2 asking the plaintiff to appear before the Committee on 5-7-1983. The allegation that the plaintiff received Taka 1.83 crore in excess is not correct. He also admitted as per terms of the contract the plaintiff was required to procure MS Rod, Cement, etc. He denied to have deposed falsely in favour of the plaintiff as his staff.
19. Mr. Md. Rafiqul Islam was examined by the defendant as DW 1. He stated that the plaintiff submitted tender for Taka 7,67,01,000.00. The Board gave the plaintiff all out co-operations. The plaintiff completed the work on 30-6-1981. The plaintiff received Taka 12,02,00,000.00 out of the work Taka 7,96,00,000.00 was the price of the tender items and the rest 4,09,00,000.00 was for non-tender items. The plaintiff received the entire amount. The plaintiff had outstanding of Taka 16,03,268.00 against his 50th bill and on account of security deposit of Taka 60,90,973.00. After the submission of the final bill there was a complaint against the plaintiff that he in collusion with the employees of the board received over payment. On receipt of such complaint the 50th bill was not passed the complaint was inquired into by a committee headed by Mr. Nurul Huda, Chief Engineer. Mr. Nurul Huda gave a notice to the plaintiff to appear before the committee on receipt of the notice the plaintiff appeared before the committee. Having understood that he had to return the money received in excess, the plaintiff instituted the suit as counter claim Mr. Nurul Huda reported that the plaintiff actually received Taka 1,83,00,000.00 in excess. On review by Mr. Wahid, Chief Engineer found that the plaintiff, in fact, received Taka 1.48 crore in excess. Security money was also not paid to the plaintiff on the ground that the Board already paid in excess. The claim of the plaintiff on account of sheet piling is not correct. As per terms of the contract, price of the work for sheet piling was paid according to square feet so the type of the sheet whether I-type or U-type or flat type did not effect the total measurement. The plaintiff having raised all objections against the measurement during the course of work Shah Au Committee was appointed. Shah Ali Committee gave the decision that on that account the plaintiff would not get anything from the Board. The matter ended there. On account of the de-watering the plaintiff claimed Taka 69,70.000.00 though the plaintiff was entitled to Taka 30,00,000.00 and the plaintiff raised objection and Shah Ali Hossain Committee was formed to consider the objection. The committee found on account of increase of the work the plaintiff was entitled to further Taka 6,00,000.00. Accordingly, Taka 6,00,000.00 was paid to the plaintiff which was received by him from bill Nos. 29 and 46 and the matter on account of de watering ended there. Having found the market price increased in respect of the MS Rod and Cement the plaintiff approached the Board and the Board in the interest of the work brought the matter to the notice of the Government and the Government decided to supply the cement at the then market price. Accordingly, the plaintiff got supply, of MS Rod and Cement at the then market price. As per terms of the contract the price of cement and MS Rod was deducted from the bills submitted by the plaintiff and, therefore, the plaintiff could not have any claim on such account as well. Due to the variation of the design of the project there was an increase of work at best to the tune of 4.50% which is much below 15% and that is why the claim of the plaintiff on account of increase of the work at 69 75% is imaginary and has no basis. The claim of the plaintiff on account of interest has no basis also because he cannot claim any interest as per terms of the contract. On being asked, he stated that whatever he deposed, he deposed on the basis of the record. In cross- examination he stated that in I-type, by multiplication of length and breadth, measurement in square feets obtained. Whereas in Case of U-type, by multiplication of the length and breadth of the three sides plus two legs, measurement in square feet is obtained. The plaintiff executed the work in both I and U-type as per contract. He also stated, the tender price was Taka 7 67 01 000 00 and the final bill on the completion of the work stood at Taka 12,20,00,000. The bulk of the work with the non-tender items increased by 56.71% but the tender quantity did not increase more than 5%. He also denied that the plaintiffs claim stood at Taka 19,18,64,745.00.
20. Let us now see whether the judgment and decree passed by the Subordinate Judge decreeing the suit in its entirety for Taka 10,85,53,174.99 are well founded on the facts as well as on the laws.
21. It is not disputed that the plaintiff got the contract for construction of the Manu Barrage in the District of Moulvibazar and on 8-7-1977 the contract for the work was executed. The erosion, and change of the course of the river Manu, necessitated some change and adjustment in some portions of the original layout design of the project. Ultimately, the work commenced on 6-12-1977 and completed on 30-6-1981 instead of 30-4-1979 as originally agreed upon by the parties. On 3-12-1982 the plaintiff submitted the final bill being 50th bill for an amount of Taka 16,03,278 for the outstanding dues against 46th to 49th bills.
22. The plaintiff was asked by a notice dated 2-6-1983 to appear on 5-7-1983 before an inquiry committee headed by Mr. Nurul Huda, the Chief Engineer, to inquire into the allegations of the overdrawing of Taka 1,48,00,000.00 by the plaintiff in collusion with the employees of the BWDB. Then on 3-7-1983 the plaintiff made a written representation to the Chairman of the BWDB for the first time claiming Taka 4,30,58,340.00 as outstanding dues including above mentioned Taka16,03,278.00 and the security deposit of Taka 60,93,273.00.
Then, the dispute at the instance of the plaintiff referred to two arbitrators appointed by both the plaintiff and the BWDB and the arbitrators gave an unanimous award in favour of the plaintiff for Taka 38,33,973.00 only. On the objections raised by both the plaintiff and the defendant the award was set aside by the court by its order dated 17-11-1991
23. Before we consider the merits of claims of the plaintiff; we must dispose of the legal issue on the maintainability of the suit as raised by Mr. Rafiqur Rahman. We find that in allowing the objections, the learned Subordinate Judge by his order dated 17-11-1991 set-aside the award on the grounds that the award was given by total non-application of mind, the award was a non-speaking award, and the arbitrators misconduct themselves and also the arbitration proceeding.
24. The learned Subordinate Judge passed no other order either superseding the reference and/or declaring the arbitration agreement shall cease to have effect with respect to the difference referred.
25. In view of such order, Mr. Rafiqur Rahman submitted that the order must have been passed under section 19 of the Arbitration Act shortly, the Act, and the parties therefore are obliged to pursue a fresh arbitration, and the suit instituted in presence of the arbitration agreement is not maintainable. Hence, according to him, this appeal for fresh arbitration. On the other hand, Mr. Maksudur Rahman, opposing the submissions, submitted that when the objections were filed by both the parties under section 33 read with section 30 of the Act, the order must be treated to have been passed under section 33 of the Act. According to him, therefore, the suit is quite competent.
26. It is true, both the plaintiff and the defendant filed their objections to the award of the arbitrators under section 33 read with section 30 of the Act. It is equally true that the arbitrators were appointed by the parties as per terms of the contract without any intervention of a Court under Chapter TI of the Act.
27. No doubt, objections against an award are to be filed before, and disposed of by the Court under section 33 of the Act. Section 30 enumerates the grounds on which an award shall be set aside. In disposing of such objections, the Court may, under section 19 of the Act, supersede the reference and declare the arbitration agreement has ceased to have any effect where an award has become void under sub-section (1) of section 16 or, on setting aside the award. As stated earlier, the learned Subordinate Judge by his order dated 17-11-1991 just allowed the objections and set aside the award. No other order or direction is there in the order either superseding the reference or declaring the arbitration agreement to have ceased to have any effect. The only legal effect of such an order is that the parties were left free to choose either to go for any fresh arbitration or otherwise.
28. The plaintiff instituted the suit. The defendant did not raise any objection to the institution of the suit. Nor took any step for stay of the proceedings in the suit. Rather, the defendant appeared in the suit, filed written statement and contested. After the final decision in the suit and in this appeal therefrom, it is very difficult for us to appreciate the submissions of Mr. Rafiqur Rahman that in view of the arbitration agreement having remained alive, the suit is not maintainable. Moreover, we find no such provisions in the Act barring a suit on the ground of existence of an arbitration agreement. We find only one bar against a suit under section 32 of the Act, “no suit shall be on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award. The decision reported in 17 DLR (SC) 404 relied by Mr. Rafiqur Rahman does not help him either. So, the submission of Mr. Rafiqur Rahman on the issue of maintainability has no substance.
29. We shall now consider the merit of the claims of the plaintiff item by item. The claim for Taka 16,03,278.00 for which the 50th bill was submitted by the plaintiff for the outstanding dues against 46th to 49th bills, and for Taka 60,93,273.00 deducted by the defendant from the running bills as security deposit are not disputed. But the defendant withheld the money on the ground that the plaintiff received Taka 1,48,00,000.00 in excess in collusion with the employees of the BWDB. In support of such action, no evidence was adduced by the defendant. None of the persons who held the inquiry was examined. In the absence of any evidence, the case of the defendant on overpayment to the plaintiff cannot be accepted. We accordingly, find that the plaintiff is entitled to a decree for these amounts.
30. The plaintiff has also claimed Taka 32,35,535.00 as short payment on account of measurement for the sheet pile work in view of the change of the design. The defendant opposed the claim contending that the entire payment on the measurement of the sheet pilings was finally paid to the plaintiff in 1979. DW 1 testifies that in 1979 when the plaintiff raised the claim on the measurement of sheet pilings, the matter was referred to a Committee headed by Shah Ali Hossain and the Committee considered the claim and found the claim not accepted. He further testified that as per terms of the contract, the payment on account of sheet pilings was made in square feet I-type, U-type or Flat-type does not make any difference in the measurement, for the sides and legs were measured separately in square feet. The matter ended there. Thereafter, the plaintiff never raised any objection thereto before the Board.
31. The plaintiff as PW1 and his sole witness PW 2 have not given any basis except solemn assertions in their depositions for making such claim on account of measurement of the sheet pile works. Moreover, no expert evidence was adduced nor any measurement was furnished in support of such claim. We also could not find any material in support of the claim from the documents exhibited by the plaintiff in the suit. So, we find that the plaintiff fails to prove his claim for Taka 32,35,535.00 on account of sheet pile works.
32. Similarly, the plaintiff claimed Taka 69,70.000.00 for the work of de-watering. De watering was originally estimated to be carried out from an area of 90,678 square feet with a depth of 28 feet. Due to the change in the lay out design, he carried out de-watering of an area of 1,51,001 square feet With a depth of 37 feet. Opposing the claim, the DW 1 on behalf of the defendant testified that originally the work of de-watering agreed upon by the parties was estimated at Taka 30,00,000.00. But due to the change of the layout design, when the plaintiff raised claim for the enhanced work the matter was referred to the Committee headed by Shah Ali Hossain and the committee after thorough consideration of the work approved and recommended for an additional payment of Taka 6,00,000.00 to the plaintiff vide exhibit ‘A.’ Accordingly, the plaintiff withdrew the amount of Taka 6,00,000.00 against his 30th and 46th bills to his satisfaction. Thereafter, he never raised demand over the same. On this count also, we could not find any evidence in support of this claim from the record of the excepting the assertions of the plaintiff. Accordingly, this claim of the plaintiff for Taka 69,70,000.00 on account of de-watering also fails.
33. The plaintiff next claimed for Taka 15,24,221.30 as deducted from his bills for the price of MS Rod at the rate of 8,124.00 per ton instead of estimated rate of Taka 6,760.00 per ton and also for Taka 21,98,176.50 deducted from his bills for the price of Cement of the rate of Taka 1,502.00 per ton instead of estimated rate of Taka 1,060.00 per ton. Opposing the claim as baseless, the defendant contended that as per terms of the contract the plaintiff was required to procure all raw materials including MS Rod and Cement. In view of the delay in the completion of the work and the urgency felt at the time, when the plaintiff requested the defendant for MS Rod and Cement, the defendant brought the matters to the notice of the Government. In the interest of the work, the Government was also agreed to supply MS Rod and Cement but on the condition that the price to be paid at the prevailing market rate. It was the defendant who agreed thereto and procured the MS Rod and Cement. Accordingly, the price for the MS Rod and Cement used by the plaintiff in the project was charged at the prevailing market rate and collected from the bills and remitted to the account of the Government. In this respect, the defendant was under no obligation to return any amount to the plaintiff. We have seen the terms of the contract and found that the plaintiff agreed to procure all raw materials including MS Rod and Cement; the plaintiff also failed to adduce any evidence in support of his claims. The plaintiff therefore has failed to show any basis for his claims on the above count. This claim of the plaintiff for Taka 15,24,22 1.30 and Taka 21,98,176.50 which he paid more due to the difference in the market rate and the estimated rate for MS Rod and Cement respectively therefore fails too.
34. The plaintiff also claimed for Taka 2,00,61,375.00 on account of increase of the project work by 75.69. We find nothing from the evidence of the plaintiff and PW 2 as how they calculated the amount. As stated earlier that in the suit no expert was examined nor any authentic evidence was adduced. As a last straw, our attention was drawn to the unanimous award given by the arbitrators, exhibit 20. It appears that the learned arbitrators awarded to the plaintiff an amount of Taka 73,43,000.00 on account of increase in the volume of the work. The arbitrators also assessed that the plaintiff received Taka 1,42,03,278.00 in excess against the final bill 50th bill and after deducting the amount gave an award of Taka 38,33,973.00. Both the parties raised objections against the award and the learned Subordinate Judge set aside the award finding no reasons or materials to support the award. We also could not find any reason or material in support of the conclusion of the arbitrators.
35. On behalf of the defendant, DW 1 testified that due to variation of the work there might be an increase of work at best to the tune of 4.5% which is much below the agreed 15% and, as such, the claim of the plaintiff on account of increase of the work by 75.69 is imaginary and has no basis. He further stated that admittedly, the original work was estimated at Taka 6,67,01,000.00. The final bill on the completion of the work stood at Taka 12,20,00,000. So, the work for the non-tender items was for about Taka 5,52,99,000.00 and the work of the non-tender items was increased by about 56.71% but the tender quantity did not increase more than 5 per cent.
36. Admittedly, the work was originally estimated at Taka 6,67,01,000.00 but due to the change of the layout design, the volume of the work increased to Taka 12,20,00,000.00. Out of this amount, the plaintiff and his witness DW 2 have admitted to have received a sum of Taka 12,02,00,000.00 against the head to work beyond the originally estimated work i.e. the non-tender works of Taka 12,02,00,000.00—6,67,01,000.00 Taka 5,34,99,000.00. Even thereafter, how there could be a further claim of the plaintiff for Taka 2,00,61,375.00 for non-tender works is totally misconceived. Having found no evidence in support of the claim, we are left with no choice but to reject this claim of the plaintiff for Taka 2,00,61,375.00 as well.
37. Lastly, funniest claim of the plaintiff is that, he himself calculated interest for Taka 6,68,79,616.19 on the supposed principal dues on the aforesaid claims. The right to interest arises only after the claim for any principal amount is found valid and whether interest could be awarded or not in a case is also within the discretion of a Court. The law on interest is now well settled. Section 34 of the Code of Civil Procedure has given the discretion clearly to a court of law and envisages of three stages to award interest in a decree for money. The Court may in the decree order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate as the Court deems reasonable on the aggregate sum so adjudged, from the date of the decree to the date of payment, or such earlier date as the court thinks fit. So, no party has any right to pray for a decree on any interest as a principal sum. In this suit, the learned Subordinate Judge decreed not only each and every claim of the plaintiff but also the claim for interest of Taka 6,68,79,616.19 in the absence of any evidence and reasons.
38. It does not escape our notice that the plaintiff claimed for Taka 16,03,278.00 only by submitting his final bill being 50th bill. The bill submitted on 3-12-1982. But after receipt of the notice dated 2-6-1983 asking him to appear on 5-7-1983 before the inquiry committee in connection with an inquiry in respect of receipt of Taka 1,48,00,000.00 in excess in collusion with the employees of the defendant. The plaintiff on 3-7-1983 for the first time raised claims on account of short payment in respect of sheet pile works, dewatering, excess payment for MS Rod and Cement, increased work for variation, etc. So, after completion of the work, the plaintiff submitted 50th bill on 3-12-1982 and admittedly, he did not submit any other bill nor raised formally any other claim till then i.e. 3-7-1983 and the 50th bill must be held to be the final bill. In view of our aforesaid findings, the suggestion of the defendants that in order to avoid to return the excess amount withdrawn by him, the plaintiff came up with such exaggerated claims cannot be brushed aside. It must also be noted that the plaintiff is not found to have come before the Court with clean hands.
39. For the reasons as stated above, the appeal must succeed but in part. The plaintiff is entitled to a decree for Taka 16,03,278.00 on account of outstanding dues against his 46th to 49th bills as was submitted by him in 50th bill plus Taka 60,93,273.00 as security deposit in total Taka 76,96,551.00 and the decree of the trial Court in respect of the rest is set aside. The suit is accordingly, decreed for Taka 76,96,551.00 only together with interest at the rate of 15% from the date of decree passed by the trial Court till realisation. The parties are directed to bear their own respective costs.
Send down the record of the case without any further delay.
Source: 53 DLR (2001) 200